- (1.) HEARD learned counsel for the parties. .
(2.) THIS application has been filed for quashing of the FIR of Barharwa P.S. Case no. 96 of 2012 instituted under Section 7 of the Essential Commodities Act . It is the case of the prosecution that the Block Supply Officer, Barharwa, when received the information that two persons have been found indulging themselves in selling the articles subject matter of distribution under Public Distribution System, came to the spot and found that the villagers have apprehended two persons, namely Sarju Soren and Abhirul Islam, who were found in possession of 100 Kg. of Jharkhand Salt, which was meant to be distributed through the PDS dealer. On being quizzed, Sarju Soren disclosed that he had purchased the salt from Bale Hembrom, a PDS dealer. On such allegation, the case was registered as Barharwa P.S. Case No. 96/2012 under Section 7 of the Essential Commodities Act. Learned counsel appearing for the petitioner submitts that the Central Government repealed all the control orders applicable to PDS Dealer with effect from 31.8.01 when the Central Government promulgated Public Distribution System (Control) Order 2001, whereby annexe - 6 to the public distribution system (control) order does prescribe that the State Government are to issue an Order Under Section 3 of the Essential Commodities Act regulating sale and distribution of the commodities relating to public Distribution System but the State Government, Jharkhand has not issued any such order under Section 3 of the Public Distribution System (Control) order, 2001 and thereby the PDS Dealers who even indulge themselves with the illegality and irregularity in the matter of distribution of essential commodities to the beneficiaries of the scheme cannot be prosecuted. Thus prosecution against the petitioner gets vitiated. Learned counsel for the petitioner further submits that the Block Supply Officer, Barharwa who effected the search and seizure, has never been authorized to make search and seizure in terms of Clause 10 of the said order and as such, on this ground also the entire prosecution gets vitiated. Learned counsel for the petitioner further submits that this plea has been accepted by this Court in the Case of Aloke Dutta Vs. State of Jharkhand in Cr. M.P. No. 56/2012 and has been pleased to quash the First Information Report, which was the subject matter of that case and, therefore, the present First Information Report warrants to be quashed. In the context of the submission, it is necessary to take notice of Clause 14 of the Public Distribution System (Control) Order, 2001 , which reads as under: - 14. "Provisions of the Order to prevail over previous Orders of State Governments - The provisions of this Order shall have effect notwithstanding anything to the contrary contained in any Order made by a State Government or by an officer of such State Government before the commencement of this Order except as respects anything done, or omitted to be done thereunder before such commencement." From perusal of the provision of the aforesaid order, it does appear that all the earlier provisions relating to Dealer under the Public Distribution System virtually get repealed by virtue of the provision as contained in Clause 14. In such situation, the provision of the Unification order after commencement of the Public Distribution System (Control) Order, 2001 would not be workable so far it relates to the matter relating to distribution of PDS Commodities.
(3.) NOW coming to other aspect of the matter, the argument has been advanced on behalf of the petitioner that the Block Supply Officer, Barharwa who had made search and seizure, upon which, case has been registered, has not been authorized by the State Government to make search and seizure. This plea has not been controverted by the state Government either by way of submission or by way of filing counter affidavit. Nevertheless, to clause 10 of the said order needs to be referred to which reads as under: - 10. Power of search and seizure - (1) An authority authorized by State Government shall be competent to inspect or summon such records or documents as may be considered by him necessary for examination and take extracts or copies of any records or documents produced before him. (2) If the said authority has reasons to believe on receipt of a complaint or otherwise that there has been any contravention of he provisions of this Order or with a view to securing compliance with this Order, he may enter, inspect or search the fair price shop or any premises relevant to transactions of business of the fair price shop. (3) The said authority may also search, seize or remove such books of accounts or stocks of essential commodities where such authority has reason to believe that these have been used or will be used in contravention of the provisions of this Order. (3A) The authority conducting search and seizure under sub -clause (3) shall inform the State Government or an officer authorized by it in this behalf, the details of the search conducted and the stocks of essential commodities so seized by them under that clause. (4) The provisions of section 100 of the Code of Criminal Procedure 1973, relating to search and seizure shall so far as may be, apply to search and seizure under this Order. ;